'(Being an Appeal from the judgment and decree of the Senior Resident Magistrate/Adjudicator, Hon. C. Ndumia, delivered on 4th July 2023 in SCCOMM No. E7795 of 2022)
1. This is an appeal from the decree and judgment of the Small Claims Court (SCC) delivered on 4th July 2023, in which the trial court dismissed the appellant''s (Claimant before the SCC) claim with costs, finding that the same had not been proved on a balance of probability.
2. The claim arose out of a contract between the appellant and the respondent. From the pleadings filed before the SCC, the evidence tendered by the parties in support of their respective cases, and the submissions of learned counsels on the claim, there was no dispute that the parties had entered into a contract. However, there seems to be some mix-up in the pleadings, evidence, and submissions on the scope of the contract, even as both parties stated in their respective pleadings that there was no dispute on the terms.
3. It will become apparent in the consideration of the evidence tendered before the trial court that the appellant mixed up its case, thereby leading the learned trial adjudicator into uncertainty over what the claim was about. The learned trial adjudicator did the best out of the mixed facts presented to her.
4. The mix-up in the appellant’s case in the pleadings, evidence tendered, and the submissions necessitates this court to look at the entire case, to discern which points of law arise for its determination, leaving out issues of fact where they were properly determined by the trial court, even as appeals to this court are confined to points of law only.
5. The facts leading to the claim were that the appellant and the respondent entered into an agreement for the supply, delivery, fabrication, and construction of an elevated water tank as per the letter dated 13th August 2020 from Mandeep Enterprises Ltd to Concordia Building and Civil Engineering Works Ltd, which letter I have found elsewhere herein that formed the basis of the contract between the parties.
6. But, in its statement of claim dated 8th December 2025, the appellant pleaded the nature of its claim to be for “goods sold and delivered” amounting to KShs 900,000/=. The appellant pleaded further that on various dates in the year 2020, the claimant, at the request of the respondent, “supplied construction materials” worth KShs 900,000/=, but the respondent had failed to pay for the same, thereby breaching the contract between the parties. The appellant therefore prayed for judgment in the sum of KShs 900,000/=, compensation for breach of contract, interest, and costs.
7. At the hearing, the appellant gave evidence through one witness, PW 1, Mandeep Singh Phull. He adopted his witness statement dated 7th February 2023 as his evidence in chief and produced several documents in his list of documents dated 7th February 2023 to support the appellant’s case. PW 1 also testified. The dates in his witness statement appear to be mixed up, but, since the parties agreed that they entered into the contract, the mix-up in the dates is not material.
8. In the witness statement, PW 1 stated that the appellant and the respondent entered into the contract on 13th August 2020. That the contract was for, “fabrication, installation and erection of 18 metres height tower and 108,000 litres steel tank …” The plain meaning of this highlighted statement is that this was a construction contract. It was not only for the supply of the materials as pleaded or the undertaking of the works. It included both aspects.
9. Among the documents produced by PW 1 as exhibits were:
a. A letter dated 13th August 2020 from Mandeep Enterprises Ltd to Concordia Building and Civil Engineering Works Ltd, which the appellant insists formed the written contract between the parties. This agreement was signed for the appellant but not for the respondent. The terms therein were that the agreement was for “fabrication, supply and fitting” of a 108M3 tank with an 18M high Tower with no plumbing works or gate valve at a cost of KShs 3,300,000/= + VAT. Payment terms were 60 per cent advance payment with order, 30 per cent upon receipt of materials on site, and 10 per cent upon completion.
b. Local Purchase Order (LPO) dated 18th August 2020 from the respondent to the appellant for “fabrication, supply and fitting of 108 M3 tank with 18 M high Tower with no plumbing works or gate valves” for KShs 3,300,000/= plus 14 per cent VAT of KShs 462,000/=, making a total of KShs 3,762,000/=.
10. I pose at this point to note that the LPO was drafted in the same words as the letter dated 13th August from the appellant to the respondent, which letter the appellant insists formed the contract between the parties. The other documents produced by the appellant were as follows:
d) Image of the returned cheque for KShs 900,000/=.
e) There are various photos of works done for the foundation of the project.
f) Letter dated 21st November from Robi Kerato Partners Advocates for the appellant to the respondents demanding the payment of the sum of KShs 900,000/=. The letter indicates that, “Our client supplied to you building materials to the value of 900,000/=.
11. What is noticeable in this letter is that the demand is for “building materials supplied.” It is not for the “supply of materials and works” done. The rest of the documents produced by the appellant were as follows:
g. Letter dated 26th November 2020 from the appellant in person (not through its advocates who had written the earlier letter of demand to the respondent) to Engineer Gitau titled, “Ref: Material used for foundation of 18M High Tower for 108M3 Tank in Kabati. Bill of Quantity.” The total amount of the cost of the materials and labour was indicated as KShs 420,000/= add VAT.
h. Letter dated 22nd December 2020 from the appellant to the director Namsip seeking assistance on payment of KShs 420,000/= from the respondent.
12. The respondent in its response dated 31st January 2023 stated that the KShs 900,000/= being claimed by the claimant for the bounced cheque was supposed to be cashed only after work had been done and not just for the supply of materials. That the claimant had not done any work but “had only supplied materials” for the construction of the water tank. That the value of materials supplied was only KShs 160,000/= and that the claimant left the site with materials when negotiations broke down.
13. At the hearing, the respondent called DW 1, Abdi Yakub Duale, its managing director, as its witness. The witness gave evidence and adopted his witness statement dated 15th February 2023. He reiterated the respondent’s pleadings in the statement of defence. He stated further that the respondent agreed to give the appellant a cheque of the claimed KShs 900,000/=, for deposit, to be cashed only after 40 per cent of the “construction work had been done or substantial construction materials had been delivered.” The witness does not state where this agreement arose from because the only written agreement produced by the appellant did not contain such a provision.
14. The statement stated further that the appellant had delivered construction materials only worth KShs 160,000/=and not the alleged KShs 900,000/= and that in any case, the appellant admitted to have supplied materials worth KShs 420,000/= as at December 2020 and nothing more. Here, it has to be remembered that the parties had entered into a written contract and since the respondent had cited the exact words used in the letter relied on by the appellant as the agreement between the parties, I find that the parties intended to be bound by the said agreement, the fact that the respondent had failed to sign it notwithstanding. The allegation that the letter was never received or acted upon by the respondent is false because, otherwise, it would not have reproduced those exact words in the LPO.
15. The respondent’s witness went on to state in his statement that the claimant in breach of the agreement proceeded to cash in the cheque before doing any construction work. The cheque bounced. Later, the witness said in testimony that the respondent stopped payment of the cheque. Although the witness states that no work had been done, he does not comment on the photographs produced by the appellant in evidence showing the works undertaken and therefore the faxt of the works having been done to the extent shown therein remained undisputed.
16. The respondent’s witness stated further that the appellant left with the construction materials except cement, sand and ballast when negotiations broke down. Further that the appellant wrote to the respondent where he requested to be paid. Upon valuation of the amount agreed was KShs 192,000/=as per the attached Bill of Quantities (BQ). The appellant refused to be paid for the materials supplied, a sum of KShs 192,000/=.
17. The respondent seems to insist that the payment due to the appellant was only for materials supplied, yet in its BQ produced in evidence it showed that certain works had been done.
18. The learned adjudicator considered the evidence tendered by the parties and submissions filed by learned counsels for the parties and concluded that the appellant had not proved its claim to the required standard and therefore dismissed it.
19. It is that judgment that has precipitated this appeal based on the grounds set out in the memorandum of appeal dated 17th July 2023, contending that there are errors of law and fact made by the learned trial Adjudicator in arriving at her decision. The grounds are:
a. The learned trial magistrate erred in law by disregarding the legal principle that parties are bound by either their signed contract documents or other implied evidence that indeed work was done.
b. The learned trial magistrate erred in law and fact by disregarding that a cheque was issued with enough evidence vide a letter dated 20th November 2020 that the payment was indeed for works done by the appellant.
c. The learned trial magistrate erred in law and fact by purporting that the claim was for the supply of materials whereas the appellant clearly stated in his witness statement that the unpaid cheque was for payment of works done for the respondent and proceeded to deliver judgment that the claim was for supply of materials.
d. The learned trial magistrate erred in law and fact by failing to look at the documents provided and especially communication vide letters by the appellant, the basis upon which it proceeded to deliver judgment in favour the respondent despite there being enough evidence that indeed the appellant supplied construction materials and offered construction services.
20. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be set aside, and the costs of the appeal and the trial court be awarded to the appellant.
21. There are a few observations for housekeeping, which learned counsel for the appellant may wish to remember in the future. All the grounds of appeal start with the standard phrase of “…the learned trial magistrate erred in law and in fact…” Claims before the SCC are not conducted by a magistrate but by an adjudicator as per section 5(a) of the SCCA (Cap. 10A) Laws of Kenya, the fact that an adjudicator may be at the same time a magistrate notwithstanding. The jurisdiction to preside over an SCC is conferred by statute upon an adjudicator and not a magistrate.
22. Secondly, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. I note that in three out of the four paragraphs of the grounds of appeal laid out in the memorandum, the learned counsel for the appellant keeps adverting to the phrase “the honourable magistrate erred in law and in fact.” Learned counsel would do well to refer to and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
23. Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court.
24. I have reproduced the grounds of appeal as filed to demonstrate that the mix-up in the pleadings, evidence, and submissions in the trial court also found its way into this appeal. For instance, grounds 3 and 4 seem to be speaking at cross-purposes. Whereas ground 3 says the appellant’s evidence was that the claim was for non-payment of works done, ground 4, on the other hand, indicates that there was evidence that the claim was for the supply of construction materials and works done. Further, the appellant states in ground No. 3 of the appeal that, whereas the learned trial magistrate found that the claim was for the supply of materials, the appellant stated in its witness statement that the bounced cheque was for payment of works done for the respondent. Therefore, it is the appellant’s position on that ground of appeal that the claim was in fact not for the supply of materials but for works done only. Yet, before the SCC, the appellant pleaded the nature of its claim to be for “goods sold and delivered” amounting to KShs 900,000/=.
25. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
26. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
27. The trial court, having been caught up in the mix-up indicated above, made findings that appear inconsistent. For instance, the trial court found that the claim by the appellant was for the “supply of materials worth KShs 900,000/=, but also that the claimant had produced photographs showing works done, but no documents showing the materials supplied. Yet, the trial court’s final finding was that, “The only documents produced in proof of materials supplied and works done at 192,584.” These findings are not clear on whether the trial court’s final decision was that the claim was for supply of materials alone or for both the supply of materials and works done.
28. The issue of whether or not the findings of the trial court were correct is important because, under section 38 of the SCC Act, appeals to this court are confined to points of law. Failing to make correct findings from the pleadings and facts is a matter of law and therefore, this court would be required to review the entire evidence presented before the trial court as this court has done herein.
29. The Court of Appeal in the case of M’Riungu v. Republic [1983] KLR 455, has given guidance on how to proceed in an appeal on points of law thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
30. The appellate court may, however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
31. Under Section 32 of the Act, the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence.
32. The SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. In my view, the standard of proof in a claim before the SCC seems to be more flexible than in other civil cases, where the standard is on a balance of probability. It is upon the adjudicator to determine the material to rely upon. So that where the learned adjudicator has properly applied her mind to the facts and the law, it is upon her view of the claim whether the said standard has been achieved or not.
33. In this case, the learned trial adjudicator does not seem to have fully evaluated the facts presented to the court by the parties and applied the flexible standard of proof in such claims.
34. Briefly, from the pleadings, the evidence and the submissions presented before the SCC, the facts were that the parties were in a contractual relationship. There was no dispute about that. The contract was reduced to writing as evidenced by the letter dated 13th August 2020 from the appellant to the respondent and the LPO dated 18th August 2020 from the respondent to the appellant. The parties demonstrated, through their conduct in performing the contract, that they intended to be bound by its terms. The terms of payment provided that 60 per cent of the contract sum (amounting to KShs 1,980,000/=) would be paid as a deposit. There was evidence by the parties that the appellant had supplied a certain quantity of materials, and evidence by the appellant that work had been done to a certain extent. The appellant demanded payment of KShs 420,000/= for the materials supplied and work done. The respondent issued a cheque for KShs 900,000/= but stopped its payment.
35. From the foregoing findings, and applying the flexible standard of proof before the SCC, the logical conclusion from that evidence would be that the sum of KShs 420,000/= was payable from the respondent to the appellant. The contention by the respondent that it agreed to give the appellant a cheque of the claimed KShs 900,000/=, for deposit, to be cashed only after 40 per cent of the “construction work had been done or substantial construction materials had been delivered is not supported by the terms of the contract or any other evidence showing that the terms had been varied to provide for such.
36. So that, if this claim was filed before the magistrate’s civil court, and applying the rigours of the law of evidence before the magistrate’s court, perhaps the finding would be that the respondent was in breach of the contract and would be liable on the entire sum of KShs 900,000/= if not more, if the contractual term of payment providing that 60 per cent deposit had to be made, was considered.
37. However, the flexible standard of proof applicable in considering claims before the SCC requires that issues be determined on what is practically discernible from the parties’ case. In this case, what was clear was that, there was a contract between the parties, materials were supplied, works done to a certain extent, and the appellant asked to be paid KShs 420,000/=. To that extent of execution of the contract, he could not be paid the KShs 900,000/= simply because the respondent had issued a cheque in that sum. At the same time, the respondent could not be allowed to walk out of the contract scot-free, so to speak, when there was evidence that, in fact, materials had been supplied and certain works executed by the appellant. That is how flexible the standard of proof in a SCC would be applied.
38. In that case, I find that the learned trial adjudicator was in error in finding that the appellant’s claim had not been totally proved.
39. Consequently, I set the judgment of the trial court aside and substitute it with a judgment allowing the claim to the extent of KShs 420,000/= for the appellant against the respondent together with costs and interest.
40. The appellant also gets the costs of the appeal.
41. Delivered, dated and signed on the Virtual Platform, Teams this 1st day of October 2025.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
Kerio holding brief for Gacharia for the Appellant.
Chacha for the Respondent.
Ummu holding brief for Carlos, Court Assistant.
'
1. This is an appeal from the decree and judgment of the Small Claims Court (SCC) delivered on 4th July 2023, in which the trial court dismissed the appellant''s (Claimant before the SCC) claim with costs, finding that the same had not been proved on a balance of probability.
2. The claim arose out of a contract between the appellant and the respondent. From the pleadings filed before the SCC, the evidence tendered by the parties in support of their respective cases, and the submissions of learned counsels on the claim, there was no dispute that the parties had entered into a contract. However, there seems to be some mix-up in the pleadings, evidence, and submissions on the scope of the contract, even as both parties stated in their respective pleadings that there was no dispute on the terms.
3. It will become apparent in the consideration of the evidence tendered before the trial court that the appellant mixed up its case, thereby leading the learned trial adjudicator into uncertainty over what the claim was about. The learned trial adjudicator did the best out of the mixed facts presented to her.
4. The mix-up in the appellant’s case in the pleadings, evidence tendered, and the submissions necessitates this court to look at the entire case, to discern which points of law arise for its determination, leaving out issues of fact where they were properly determined by the trial court, even as appeals to this court are confined to points of law only.
5. The facts leading to the claim were that the appellant and the respondent entered into an agreement for the supply, delivery, fabrication, and construction of an elevated water tank as per the letter dated 13th August 2020 from Mandeep Enterprises Ltd to Concordia Building and Civil Engineering Works Ltd, which letter I have found elsewhere herein that formed the basis of the contract between the parties.
6. But, in its statement of claim dated 8th December 2025, the appellant pleaded the nature of its claim to be for “goods sold and delivered” amounting to KShs 900,000/=. The appellant pleaded further that on various dates in the year 2020, the claimant, at the request of the respondent, “supplied construction materials” worth KShs 900,000/=, but the respondent had failed to pay for the same, thereby breaching the contract between the parties. The appellant therefore prayed for judgment in the sum of KShs 900,000/=, compensation for breach of contract, interest, and costs.
7. At the hearing, the appellant gave evidence through one witness, PW 1, Mandeep Singh Phull. He adopted his witness statement dated 7th February 2023 as his evidence in chief and produced several documents in his list of documents dated 7th February 2023 to support the appellant’s case. PW 1 also testified. The dates in his witness statement appear to be mixed up, but, since the parties agreed that they entered into the contract, the mix-up in the dates is not material.
8. In the witness statement, PW 1 stated that the appellant and the respondent entered into the contract on 13th August 2020. That the contract was for, “fabrication, installation and erection of 18 metres height tower and 108,000 litres steel tank …” The plain meaning of this highlighted statement is that this was a construction contract. It was not only for the supply of the materials as pleaded or the undertaking of the works. It included both aspects.
9. Among the documents produced by PW 1 as exhibits were:
a. A letter dated 13th August 2020 from Mandeep Enterprises Ltd to Concordia Building and Civil Engineering Works Ltd, which the appellant insists formed the written contract between the parties. This agreement was signed for the appellant but not for the respondent. The terms therein were that the agreement was for “fabrication, supply and fitting” of a 108M3 tank with an 18M high Tower with no plumbing works or gate valve at a cost of KShs 3,300,000/= + VAT. Payment terms were 60 per cent advance payment with order, 30 per cent upon receipt of materials on site, and 10 per cent upon completion.
b. Local Purchase Order (LPO) dated 18th August 2020 from the respondent to the appellant for “fabrication, supply and fitting of 108 M3 tank with 18 M high Tower with no plumbing works or gate valves” for KShs 3,300,000/= plus 14 per cent VAT of KShs 462,000/=, making a total of KShs 3,762,000/=.
10. I pose at this point to note that the LPO was drafted in the same words as the letter dated 13th August from the appellant to the respondent, which letter the appellant insists formed the contract between the parties. The other documents produced by the appellant were as follows:
d) Image of the returned cheque for KShs 900,000/=.
e) There are various photos of works done for the foundation of the project.
f) Letter dated 21st November from Robi Kerato Partners Advocates for the appellant to the respondents demanding the payment of the sum of KShs 900,000/=. The letter indicates that, “Our client supplied to you building materials to the value of 900,000/=.
11. What is noticeable in this letter is that the demand is for “building materials supplied.” It is not for the “supply of materials and works” done. The rest of the documents produced by the appellant were as follows:
g. Letter dated 26th November 2020 from the appellant in person (not through its advocates who had written the earlier letter of demand to the respondent) to Engineer Gitau titled, “Ref: Material used for foundation of 18M High Tower for 108M3 Tank in Kabati. Bill of Quantity.” The total amount of the cost of the materials and labour was indicated as KShs 420,000/= add VAT.
h. Letter dated 22nd December 2020 from the appellant to the director Namsip seeking assistance on payment of KShs 420,000/= from the respondent.
12. The respondent in its response dated 31st January 2023 stated that the KShs 900,000/= being claimed by the claimant for the bounced cheque was supposed to be cashed only after work had been done and not just for the supply of materials. That the claimant had not done any work but “had only supplied materials” for the construction of the water tank. That the value of materials supplied was only KShs 160,000/= and that the claimant left the site with materials when negotiations broke down.
13. At the hearing, the respondent called DW 1, Abdi Yakub Duale, its managing director, as its witness. The witness gave evidence and adopted his witness statement dated 15th February 2023. He reiterated the respondent’s pleadings in the statement of defence. He stated further that the respondent agreed to give the appellant a cheque of the claimed KShs 900,000/=, for deposit, to be cashed only after 40 per cent of the “construction work had been done or substantial construction materials had been delivered.” The witness does not state where this agreement arose from because the only written agreement produced by the appellant did not contain such a provision.
14. The statement stated further that the appellant had delivered construction materials only worth KShs 160,000/=and not the alleged KShs 900,000/= and that in any case, the appellant admitted to have supplied materials worth KShs 420,000/= as at December 2020 and nothing more. Here, it has to be remembered that the parties had entered into a written contract and since the respondent had cited the exact words used in the letter relied on by the appellant as the agreement between the parties, I find that the parties intended to be bound by the said agreement, the fact that the respondent had failed to sign it notwithstanding. The allegation that the letter was never received or acted upon by the respondent is false because, otherwise, it would not have reproduced those exact words in the LPO.
15. The respondent’s witness went on to state in his statement that the claimant in breach of the agreement proceeded to cash in the cheque before doing any construction work. The cheque bounced. Later, the witness said in testimony that the respondent stopped payment of the cheque. Although the witness states that no work had been done, he does not comment on the photographs produced by the appellant in evidence showing the works undertaken and therefore the faxt of the works having been done to the extent shown therein remained undisputed.
16. The respondent’s witness stated further that the appellant left with the construction materials except cement, sand and ballast when negotiations broke down. Further that the appellant wrote to the respondent where he requested to be paid. Upon valuation of the amount agreed was KShs 192,000/=as per the attached Bill of Quantities (BQ). The appellant refused to be paid for the materials supplied, a sum of KShs 192,000/=.
17. The respondent seems to insist that the payment due to the appellant was only for materials supplied, yet in its BQ produced in evidence it showed that certain works had been done.
18. The learned adjudicator considered the evidence tendered by the parties and submissions filed by learned counsels for the parties and concluded that the appellant had not proved its claim to the required standard and therefore dismissed it.
19. It is that judgment that has precipitated this appeal based on the grounds set out in the memorandum of appeal dated 17th July 2023, contending that there are errors of law and fact made by the learned trial Adjudicator in arriving at her decision. The grounds are:
a. The learned trial magistrate erred in law by disregarding the legal principle that parties are bound by either their signed contract documents or other implied evidence that indeed work was done.
b. The learned trial magistrate erred in law and fact by disregarding that a cheque was issued with enough evidence vide a letter dated 20th November 2020 that the payment was indeed for works done by the appellant.
c. The learned trial magistrate erred in law and fact by purporting that the claim was for the supply of materials whereas the appellant clearly stated in his witness statement that the unpaid cheque was for payment of works done for the respondent and proceeded to deliver judgment that the claim was for supply of materials.
d. The learned trial magistrate erred in law and fact by failing to look at the documents provided and especially communication vide letters by the appellant, the basis upon which it proceeded to deliver judgment in favour the respondent despite there being enough evidence that indeed the appellant supplied construction materials and offered construction services.
20. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be set aside, and the costs of the appeal and the trial court be awarded to the appellant.
21. There are a few observations for housekeeping, which learned counsel for the appellant may wish to remember in the future. All the grounds of appeal start with the standard phrase of “…the learned trial magistrate erred in law and in fact…” Claims before the SCC are not conducted by a magistrate but by an adjudicator as per section 5(a) of the SCCA (Cap. 10A) Laws of Kenya, the fact that an adjudicator may be at the same time a magistrate notwithstanding. The jurisdiction to preside over an SCC is conferred by statute upon an adjudicator and not a magistrate.
22. Secondly, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. I note that in three out of the four paragraphs of the grounds of appeal laid out in the memorandum, the learned counsel for the appellant keeps adverting to the phrase “the honourable magistrate erred in law and in fact.” Learned counsel would do well to refer to and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR that:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
23. Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court.
24. I have reproduced the grounds of appeal as filed to demonstrate that the mix-up in the pleadings, evidence, and submissions in the trial court also found its way into this appeal. For instance, grounds 3 and 4 seem to be speaking at cross-purposes. Whereas ground 3 says the appellant’s evidence was that the claim was for non-payment of works done, ground 4, on the other hand, indicates that there was evidence that the claim was for the supply of construction materials and works done. Further, the appellant states in ground No. 3 of the appeal that, whereas the learned trial magistrate found that the claim was for the supply of materials, the appellant stated in its witness statement that the bounced cheque was for payment of works done for the respondent. Therefore, it is the appellant’s position on that ground of appeal that the claim was in fact not for the supply of materials but for works done only. Yet, before the SCC, the appellant pleaded the nature of its claim to be for “goods sold and delivered” amounting to KShs 900,000/=.
25. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
26. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
27. The trial court, having been caught up in the mix-up indicated above, made findings that appear inconsistent. For instance, the trial court found that the claim by the appellant was for the “supply of materials worth KShs 900,000/=, but also that the claimant had produced photographs showing works done, but no documents showing the materials supplied. Yet, the trial court’s final finding was that, “The only documents produced in proof of materials supplied and works done at 192,584.” These findings are not clear on whether the trial court’s final decision was that the claim was for supply of materials alone or for both the supply of materials and works done.
28. The issue of whether or not the findings of the trial court were correct is important because, under section 38 of the SCC Act, appeals to this court are confined to points of law. Failing to make correct findings from the pleadings and facts is a matter of law and therefore, this court would be required to review the entire evidence presented before the trial court as this court has done herein.
29. The Court of Appeal in the case of M’Riungu v. Republic [1983] KLR 455, has given guidance on how to proceed in an appeal on points of law thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
30. The appellate court may, however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
31. Under Section 32 of the Act, the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It is further provided that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence.
32. The SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. In my view, the standard of proof in a claim before the SCC seems to be more flexible than in other civil cases, where the standard is on a balance of probability. It is upon the adjudicator to determine the material to rely upon. So that where the learned adjudicator has properly applied her mind to the facts and the law, it is upon her view of the claim whether the said standard has been achieved or not.
33. In this case, the learned trial adjudicator does not seem to have fully evaluated the facts presented to the court by the parties and applied the flexible standard of proof in such claims.
34. Briefly, from the pleadings, the evidence and the submissions presented before the SCC, the facts were that the parties were in a contractual relationship. There was no dispute about that. The contract was reduced to writing as evidenced by the letter dated 13th August 2020 from the appellant to the respondent and the LPO dated 18th August 2020 from the respondent to the appellant. The parties demonstrated, through their conduct in performing the contract, that they intended to be bound by its terms. The terms of payment provided that 60 per cent of the contract sum (amounting to KShs 1,980,000/=) would be paid as a deposit. There was evidence by the parties that the appellant had supplied a certain quantity of materials, and evidence by the appellant that work had been done to a certain extent. The appellant demanded payment of KShs 420,000/= for the materials supplied and work done. The respondent issued a cheque for KShs 900,000/= but stopped its payment.
35. From the foregoing findings, and applying the flexible standard of proof before the SCC, the logical conclusion from that evidence would be that the sum of KShs 420,000/= was payable from the respondent to the appellant. The contention by the respondent that it agreed to give the appellant a cheque of the claimed KShs 900,000/=, for deposit, to be cashed only after 40 per cent of the “construction work had been done or substantial construction materials had been delivered is not supported by the terms of the contract or any other evidence showing that the terms had been varied to provide for such.
36. So that, if this claim was filed before the magistrate’s civil court, and applying the rigours of the law of evidence before the magistrate’s court, perhaps the finding would be that the respondent was in breach of the contract and would be liable on the entire sum of KShs 900,000/= if not more, if the contractual term of payment providing that 60 per cent deposit had to be made, was considered.
37. However, the flexible standard of proof applicable in considering claims before the SCC requires that issues be determined on what is practically discernible from the parties’ case. In this case, what was clear was that, there was a contract between the parties, materials were supplied, works done to a certain extent, and the appellant asked to be paid KShs 420,000/=. To that extent of execution of the contract, he could not be paid the KShs 900,000/= simply because the respondent had issued a cheque in that sum. At the same time, the respondent could not be allowed to walk out of the contract scot-free, so to speak, when there was evidence that, in fact, materials had been supplied and certain works executed by the appellant. That is how flexible the standard of proof in a SCC would be applied.
38. In that case, I find that the learned trial adjudicator was in error in finding that the appellant’s claim had not been totally proved.
39. Consequently, I set the judgment of the trial court aside and substitute it with a judgment allowing the claim to the extent of KShs 420,000/= for the appellant against the respondent together with costs and interest.
40. The appellant also gets the costs of the appeal.
41. Delivered, dated and signed on the Virtual Platform, Teams this 1st day of October 2025.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
Kerio holding brief for Gacharia for the Appellant.
Chacha for the Respondent.
Ummu holding brief for Carlos, Court Assistant.
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